Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 2
Criminal Justice Matters
J. Vincent Aprile II
Scripts Are for Actors, Not Witnesses
In an administrative evidentiary hearing before a hearing officer a witness took to the stand what appeared to be a lengthy letter and its envelope, which he resorted to as soon as the lawyer's direct examination moved beyond preliminary, background questions. Intrigued by the witness's apparent reliance on the document, opposing counsel requested leave of the hearing officer to examine the document, which prompted the witness to blurt out that the document merely contained his notes. After opposing counsel perused the letter, he immediately informed the hearing officer that the document was a letter to the witness from one of the lawyers who had called this witness.
Opposing counsel read a portion of the letter aloud, emphasizing the explicit instructions and orders given this witness. The letter told the witness that the lawyer who called him would initially ask the specific question detailed in the letter and the witness should give the specific answer provided in the letter. The entire direct examination was likewise scripted for the witness, with nothing left to the witness's own memory or articulation.
In response to the opposing lawyer's objections and motions, the hearing officer ruled that the witness would not be able to use the letter during the remainder of his testimony. Interestingly, the witness in question was a practicing lawyer who was testifying primarily about actions he took in his role as a lawyer, although not as a lawyer who represented either party to the litigation. The hearing officer did not grant opposing counsel's motion to copy the letter and place it in the record of the hearing.
When a lawyer provides a witness such scripted testimony, what are the pragmatic litigation repercussions when that script is revealed to opposing counsel and the fact-finder? Even without considering the ethical issues inherent in this tactic, its practitioner should appreciate the litigation weapons available to counter this ploy, particularly in criminal cases.
First, opposing counsel may cross-examine the witness about the coaching he received from the lawyer who called him and the specific use of the letter (script) itself. Virtually everything in the letter would be fair game for the cross-examiner. (Geders v. United States, 425 U.S. 80, 89-90 (1976).) Opposing counsel would have the right to question the witness to expose the process that resulted in the witness being provided with a question and answer script, informing the witness of not only each of the lawyer's specific questions, but even the official correct answer to each of those questions asked by the lawyer.
Once the witness has related the circumstances of the coaching and the intended use of the script detailed in the letter, opposing counsel could request that the judge inform the witness in full view of the jury of a witness's obligation to testify truthfully and not to be a partisan for either side in the litigation. Such a judicial response would be warranted as corrective action to counter the corruptive effect of opposing counsel's coaching.
Where the witness's explanation of the script reveals that the document was proposed or used as a method of enhancing recall or refreshing memory, the script will appear to most fact-finders as a method of putting words in the witness's mouth, portraying the witness as the dummy and counsel as the ventriloquist.
As a result of skillful cross-examination, opposing counsel could establish a factual basis for either an admonition or instruction to the jury concerning the impact of witness coaching on the witness's credibility. The same factual predicate would empower opposing counsel in closing argument to challenge the believability of the witness's testimony on the basis of the script.
But uncovering such a script in the hands of but one of the opposition's witnesses has an exponential impact as to other witnesses called by the same party. If the cross-examination of the witness in possession of the script reveals improper witness coaching, that information adduced under oath should justify opposing counsel pursuing the question of coaching and scripting with each of the opposition's witnesses, without regard to whether any of them have brought such a script to the witness stand.
Even when a witness does not physically bring the script to the stand, cross-examination on the topic of witness preparation or coaching may reveal that such a script was used as a coaching device. Once such a revelation is made, the cross-examiner should have a sufficient factual predicate to support a motion for access to the document or, at the least, in camera judicial review of the document in question to determine whether the cross-examiner is entitled to the script.
The message is not that witness preparation is improper, unethical, or illegal. In actuality, the reverse is true. Witness preparation is normally proper, ethical, and legal. How witness preparation is accomplished, however, has a potential litigation impact factor that should not be overlooked by competent counsel.
Counsel acts properly when he or she discusses with the witness such matters as the testimony to be elicited at trial, the questions the witness will be asked on direct examination, the answers those questions will elicit, potential areas of redirect examination, the witness's choice of words, the anticipated cross-examination questions and the witness's answers, the practical effect of objections on the witness's ability to answer pending questions, the witness's demeanor in the courtroom, how the witness's testimony supports the lawyer's theory of the case, the law applicable to the witness's testimony, the witness's legal duty to tell the truth, the witness's right to answer that he or she does not remember or does not know the answer to a question when that answer is accurate, the factual basis for asserting a particular privilege where the witness believes that privilege is appropriate, and a variety of other comparable areas of witness preparation. Inherent in this type of preparation is the necessity to ensure that the witness appreciates that he or she is the one testifying, while the lawyer preparing the witness is advising, guiding, and explaining how the witness's truthful, relevant testimony should be presented and defended from attack.
In this context, there is no appropriate litigation strategy that justifies scripting the questions and answers for a witness. The simple act of committing the verbal exchanges between lawyer and witness to paper, once revealed, generates the appearance that the witness is neither neutral nor objective, but instead a performer for the lawyer who called him or her to the stand. The script as a document raises the specter that the witness is not recalling what he actually knows, but is reciting what has been programmed into his mind by the lawyer. It creates the impression that the witness would not have been called by the attorney unless the witness agreed to stick to the script.
These detrimental side effects of a script are extremely difficult to overcome before a fact-finder when such a document is revealed in court. Certainly a talented lawyer through redirect examination could mitigate the damage or perhaps even defuse the situation, but at what cost to the presentation of the client's case? Surely, such a rehabilitation detour is better avoided than made. Resorting to the use of a script for a witness should be rejected as a matter of strategy and sound litigation tactics.
Yet the most important lesson of analyzing the tragedy of using such a script is not simply to shun the device, but rather to design and implement witness preparation sessions so that counsel's thoroughness, advice, and guidance are calculated to ensure that the witness's relevant, truthful testimony is effectively presented and protected from spurious attacks by opposing counsel without the use of explicit or implicit scripts. Specific instructions to the witness with appropriate explanations as to answers and conduct on the stand forearm the witness to provide the best evidence that the preparation sessions were appropriate, aboveboard, and conducive to a well-run trial.
When the sum and substance of counsel's witness preparation sessions engender confidence that well-communicated, truthful testimony was the goal of the lawyer's advice and assistance, neither the lawyer nor the witness need fear that opposing counsel's inquiry into those sessions will undermine the credibility of either the witness or the case. A simple reality that lawyers who resort to the ease and convenience of the written script overlook to the detriment of their clients and cases.
J. Vincent Aprile II, is a senior capital litigator with the Department of Public Advocacy in Frankfort, Kentucky, where he has been a state public defender for 28 years and served as the agency's general counsel for 17 years (1982-99). He is also a contributing editor to Criminal Justice magazine and a member and former chair of its editorial board.